McDonald v. Mayor

• Decision Date: 12 January 1887
• Citation: 7 A. 855,42 N.J.E. 136
• Parties: MCDONALD v. MAYOR, ETC., OF THE CITY OF NEWARK.
• Court: New Jersey Court of Chancery

7 A. 855

42 N.J.E. 136

MCDONALD

v. MAYOR, ETC., OF THE CITY OF NEWARK.

Court of Chancery of New Jersey.

January 12, 1887.

Bill for injunction. On final hearing on pleadings and proofs.

Teese & Pitney, for complainant.

Joseph Coult, for defendants.

RUNYON, Ch. The complainant is the owner of a dwelling-house in which he resides, fronting upon the street called "Park Place," in Newark. Between that street and Broad street is an open, triangular space, known as "Military Park" or "Common." For a long time past the city authorities have permitted hucksters of vegetables and other country produce to occupy the west side of Park place, and the east side of Broad street, (including the sidewalks on both the east and west sides of the park,) in front and in the immediate vicinity of the complainant's house, for the purposes of their business. Their wagons stand upon the street, being backed up to the sidewalk, and the hucksters occupy the sidewalk with their goods, and stand there and sell them. By ordinance the city has limited such occupation to certain hours of the day,—to the period between 8 o'clock a. m. and 8 o'clock p. m., from April to November, and between 9 p. m. and 7 a. m. for the rest of the year. The complainant's house is near the front or small end of the park.

The complainant seeks an injunction to prevent the city from occupying any part of the street in front or in the vicinity of his property for market purposes, upon the ground that such use thereof is a nuisance to him and his family. The annoyance complained of is loud noises and offensive smells. The noise is of the stamping of horses' feet, the rumbling of wagons, the rattling of chains and harness, the shouting of men to their horses and to each other, the throwing of barrels and boxes from the wagons to and upon the sidewalk, the hawking of the goods, and the hum and bustle of the crowd of purchasers. The noises seriously disturb the sleep of the complainant and his family, and interfere with conversation in the house. The odors complained of arise from the refuse, and from the smoke of the torches used by the hucksters in their business, and they pervade the complainant's house. That this complaint of annoyance is well founded is not denied, and that the annoyances complained of constitute a nuisance is not disputed. But it is urged, on behalf of the defendants, that the complainant and his family are not the only ones who are affected by the nuisance; and it is urged that,...